Navin Patel and Sejal Patel v. Bipin Patel and Minaxi Patel

NO. 07-03-0357-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 26, 2004

______________________________



NAVIN PATEL AND SEJAL PATEL, APPELLANTS

V.

BIPIN PATEL AND MINAXI PATEL, APPELLEES



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FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

NO. 33,117-00-5; HONORABLE PAUL E. WHITE, JUDGE

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Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON MOTION FOR REHEARING

By order dated July 7, 2004, this Court abated this appeal and remanded the cause to the trial court with directions to file findings of fact and conclusions of law. Pending before this Court is appellees' motion for rehearing by which they request that we correct our July 7 abatement order and affirm the trial court's judgment. We grant the motion in part and overrule in part. We now withdraw our order abating the appeal and remanding the cause to the trial court and reinstate the appeal with these additional comments.

Following a bench trial, on May 19, 2003, the trial court signed its judgment in favor of appellees. On May 30, 2003, appellants, pursuant to Rule 296 of the Texas Rules of Civil Procedure, filed a timely request for findings of fact and conclusions of law. Following the trial court's inaction, a notice of past due findings was filed on July 2, 2003. See Tex. R. Civ. P. 297.

Upon submission of the appeal to this Court, by their first issue, appellants complained of the trial court's failure to make and file findings of fact and conclusions of law. Appellees responded that although appellants were not harmed by the lack of findings and conclusions, "the proper remedy for the Court is to abate the appeal and order the Trial Court to make the appropriate findings and conclusions . . . ."

By their motion for rehearing, appellees now assert that appellants' notice of past due findings was not timely and thus, fatal to the appeal. Without passing on the merits of the appeal at this time, we do, however, agree that the notice of past due findings was due to be filed no later than 30 days after the first request or June 30, 2003. ⁽¹⁾ The July 2 filing was untimely and thus, appellants are not entitled to have the trial court make and file findings of fact and conclusions of law.

Appellees have also filed a motion in which they request that they be permitted to supplement their brief to allege that appellants have waived their claim for findings and conclusions due to the untimeliness of the past due notice. Given our disposition of the motion for rehearing, we overrule appellees' request for supplemental briefing. See Tex. R. App. P. 38.7. Further, we exercise our discretion under Rule 38.7 and direct that no further amendment or supplementation of any briefs will be permitted.

Accordingly, we grant that portion of appellees' motion for rehearing requesting we withdraw our July 7, 2004 order and in all other respects overrule the motion.

It is so ordered.

Per Curiam

1. The deadline fell on Sunday, June 29, 2003; thus, the deadline was extended to Monday, June 30. See Tex. R. Civ. P. 4.